Law as understood by the Hindus is a branch of Dharma an expression which signifies duty.
Broadly speaking it means the aggregate of duties and obligations religious, moral, social and legal. Law as such has never found an exclusive place in the scheme of the writings of the Hindu law givers. The system of law enunciated by them was influenced by the theological tenets and philosophical theories founded on the social and sociological concepts of pastoral people.
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The legal precepts contained in their codes established an admixture of religion and ethics. Any attempt, therefore, to isolate completely any secular matter from its religious adjuncts would fail to give a comprehensive idea or proper perspective of the true juridical concept of Hindu law.
Early Concept of Law:
In its earliest development during the Rigvedic period, law was looked upon as symbolical of not only legal provisions but also of social order. Law was identified with the Rita and Rita meant cosmic order, the organising principle of the universe, as also die divine ordering of earthly life. Since man on this earth constitutes a unit of the big order, he is under an obligation to follow a discipline—a course of conduct to help the maintenance of the cosmic order intact. The Vedic seers too (Who were the earlier law givers) have emphasised upon the observance of a course of conduct by men so as to achieve a social equilibrium the non-observance of which would have affected the entire cosmic order itself.
This view of the human discipline, however, did not ignore the material contents of law. It was considered to have a purpose and some definite functions in the society. To these Vedic seers law was eternal and immutable and conditions of life must keep harmony with it. They did not ignore the consideration of law in its social aspects in relation to the purposes, needs and interests in life. Their whole philosophy is saturated with utilitarianism in the modem sense of the term.
In Samveda, law has been attributed with divine origin. It is said to have been created by God, by nature and by the spirit of the people. Law is not ‘made’ but ‘exists’ within and is born with the people. The habitual observance of law is, therefore, not thought to be the course of law but is only the evidence of its existence. In this respect the ancient concept of law stands in closer proximity with modern jurisprudence according to which custom is not constitutive but only declaratory.
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In the later Vedic period law was conceived of as existing to satisfy a paramount social need of general security. The philosophers of this period considered it to be an instrument for the preservation of ‘Status quo’. They seem to think of ensuring the general security immediately through the security of the existing social institutions. According to a text of Brihadavandyaka Upnished, Dharma, i.e., Law came to ensure security in the creation.
With the human relations becoming more and more complex in the society diversity grew in greater degree and accordingly need was felt to discover certain forces which could hold the social relationship firm. Law came to serve that end. According to a text, “Law is the Kshatra of the Kshatras there is nothing higher than it. Therefore even a weak man rules a stronger with the help of a King.” The creation of law helped the realisation of that end.
The end of law is thus to ensure order in the society, as also in the universe. It was indeed designed to keep peace at all events and at any price. The author of Upnished declares law to be more powerful than the power itself. In his opinion, law exists independent of any sovereign and is above the sovereign. He does not substantiate the view that ‘there is no law without a sovereign; law exists only through the sovereign.’ In Maharanarayaka Upnished a text has been enshrined which upholds the supremacy of law in the following words.
“Dharma is the mainstay of the entire moving world. In the world, people approach the most ardent follower of Dharma. They shake off sin by Dharma. Everything is established in Dharma. Hence, they say that Dharma is supreme.”
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The author of the Upnished is thus opposed to the absolute doctrine of the unlimited power of the state. The power of the state i.e., the power of the sovereign is limited not by itself, but by some inherent force of law.” Accordingly there is a rule of law above the individual and the state, above the ruler and the Rule, a rule which is compulsory on one hand, and on the other hand, if there is such a thing as sovereignty, it is juridically limited by this rule of law.”
In Mahabharat the law is said to govern all men and to secure mutual protection. Neither the State nor the King, neither the mace (by which the authority punishes law breaker) nor the mace bearer govern the people, it is only by Dharma that people secure mutual protection.
Law has been sometimes compared with a wheel that can be turned. In this sense law is never constant; it keeps on changing with time. There is an element in it that it is fixed and remains constant and this part is emphasised by making the Brahman its nave. Law contains a substance which is immutable and a form which can turn round the fixed nave. The form of law is indeed determined by its quality of goodness and is attainable by understanding, by reason. Law is intended to achieve what is good, not what is pleasurable according to Kathopnishada.
The contents of law in view of these early law givers is thus human welfare. The theories of welfare or utility are indeed the most important among the theories resting upon a practical foundation. The two notions of welfare and utility though often used as synonymous are not in all respects identical, the notion of welfare being more comprehensive than of utility.
Welfare does not necessarily mean worldly advantage and in fact it does not bear that sense with these early law givers. This life only forms a small fraction of an immensely vast future life, welfare indeed is utility in that extensive whole existence.
The end of law according to these ancient law givers, as already pointed out above, has been the maintenance of order and harmony as well as in the universe which could be possible only through the preservation of existing social institutions. It is worthwhile to notice that in some other ancient systems also, the maintenance of status quo was looked upon as the end of law. In the Greek system, for example, we find similar theories of the end of the law.
The idea of maintaining social order through law is fully developed in Plato but unlike our law givers Plato did not regard the existence of social order as what it should be. The function of law was to assign everyone his proper place. Aristotle also puts the same idea in another form, asserting that justice is a condition in which each keeps within his appointed sphere.
Indeed, these ancient Greek philosophers like our ancient sages were convinced that in every society there must be grades like master and servant, the privileged and unprivileged, the upper and the lower classes.
They undoubtedly professed to preach that justice is equality, but their concept of equality was only a relative equality. The administration of justice is the duty of the King and it is said, ‘Let the king, paying attention to all the laws of the countries, castes, and families, make the four castes fulfil their respective particular duties. Let him punish those who stray from this. But punishment must be awarded after due consideration of place, time, age, learning of the parties and the seat of injury.
These early law givers were quite conscious of the significance of the sanctions behind law. They have regarded Dand as a necessary constituent of law. Dand, according to Manu, constituted the essential part of law. Nay, Manu proceeded further and identified ‘Dand’ with law. The early Sutrakaras, however, in their theory of Dand, emphasised upon the fact that force is necessary to guarantee justice.
According to them, human nature is essentially good and sociable; fear was the ultimate guarantee of right and duty. They also believed that the maintenance of law and order would not be secure unless there were forces behind. Punishment was necessary not to satisfy the animal avenging spirit, not to threaten the future probable offenders not even to correct the offender, it was necessary for the welfare of the offending itself, its essence lay in its utility to the sufferer himself in his whole existence. Punishment had thus its ethical value.
In Mahabharat ‘Dand’ was regarded as a necessary ingredient of Dharma and of the administration. According to Manu punishment rules all creatures, it again preserves them all where all others sleep. Punishment keeps awake, the learned know punishment as Dharma identifying one with the other’.
It has been further asserted punishment maintains law and order, Ruler of men, and so also it secures wealth. Punishment again protects desires and so punishment is identical with Trivarg. Punishment is essential for the security of the community. Thus, according to Mahabharat, the quality of being enforceable constitutes the most general characteristic of law. Power, thus, figures as the most prominent constituent of the notion of law.
It is one of the distinguishing characteristics of the concept of sanction in Hindu jurisprudence that the sanctions are not merely physical but also social and religious. The religious and social sanctions have been given equal place along with the physical one to enforce compliance with law. This was done for the obvious purpose of achieving the sanctity of law over and above physical punishment which may in certain cases fail to bring the breakers of law to books.
The social and religious sanctions included expiation, penance, ex-communication, expulsion from caste, degradation to a lower caste, contempt, and scorn by fellowmen etc. Professor K.R.R. Shastri has very rightly pointed out that in ancient Hindu society where religious and secular elements were interwoven, and where civil and criminal sanctions were found in the state of non-separation, fear of consequences in the other world was as much a reality as in the present existence. A certain dread of divine displeasure always acted upon the human mind.
It was the pious and foremost duty of the king to punish those who are guilty of the breach of law. “Where the King or the ruler fails to punish those who deserve punishment and punishes those who do not deserve, would be earning ill reputation and would go to hell.”
Thus the conceptual foundation of law solely depended on sanction which incidently has a similarity with the Austinian concept of law in modem jurisprudence. Paradoxically Hindu concept of law maintained its divine origin as against Austinian approach which held that the law is sovereign ordained. The Austinian sovereign, being the fountain of law and justice was, placed above the law. On the other hand, law, according to Hindu jurisprudence is independent of any sovereign or King. The sovereign was neither a source of law nor was he above the law rather he was bound by law as much as his subjects.
The roots of Hindu Law lie in customs and conventions of persons learned in Dharma, says Apastumba, and custom is Sadachara, Sadachara is the usage or moral conduct of virtuous men. According to Manu, Sadachara as “the custom handed down in regular succession since time immemorial among the four Varns and mixed races of the country.” Sadachara is thus approved usage.
There are two views as regards the origin of Hindu Law. According to the first view it is of “Divine Origin” while the other states that Hindu Law is based upon “immemorial customs and usages”. According to the first view, since Hindu Law is derived from revelations from the God it binds the sovereign as well as his subjects. Law is the king of kings. It is far more powerful and rigid than them. Nothing can be mightier than the law by whose aid the weak may prevail over the strong.
This shows that to the Hindus the theory of Rule of law is not new. The second view of Hindu Law is based upon immemorial customs and usages. But this is not correct, publication of criminal text books along with commentaries and Digests and research therein have shown the above view as incorrect. Jurists of modern time’s say that since the theory of “Law as a command of the Sovereign” does not fit in with Hindu law it is not a law.
But one should remember that so long as a Hindu King occupied the throne of Hindu community, the upper class enjoyed the legislative power, and commands issued by them were generally obeyed. One may say therefore that the system of Hindu jurisprudence has shown no sign of decrepitude.
Rule of Law:
Another noteworthy feature of ancient Hindu jurisprudence is its emphasis on rule of law. The Hindu scriptures and epics have, no doubt, advocated the divine right of Kings, but it never allowed to Brooke tyranny. A wicked and tyrannical ruler who acted arbitrarily could not only be deposed but even slain, says Sukraniti. The story of King Vena in Mahabharat illustrates this. Administration of justice and upkeep of law and order which were some of the primary attributes of sovereignty were entrusted to the Kings.
The King has to preserve, protect, and defend the law of his subjects. In cases of vanquished kingdoms, the victorious monarch is precluded from imposing his own laws on the conquered subjects. On the other hand he was enjoined to preserve the status quo of the law as it existed before the conquest. The King not all by himself, but with the assistance of the counsel, was enjoined to dispense justice by following the law ordained by the Shastras and the wisemen.
He had his own limitations imposed (of courses by the subjects) on his office as the chief political Head of the State. It is further noteworthy that at times some restrictions were put on his privy purse also, as according to Dharmashastras he could not receive more remuneration than his religious and political chiefs.